IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(STATUTORY ORIGINAL JURISDICTION)

Company Matter No. 193 of 2019

(Judgment has been pronounced in virtual Court)
IN THE MATTER OF :
An Application under Section 233 of the
Companies Act, 1994.
AND
Syed Nuruddin Ahmed
…… Petitioner
-Versus-
Maxwell Stamp Ltd. and others
..…. Respondents
Dr. Md. Mahboob Murshed, Advocate
……..For the Petitioner
No one appears
……..For the respondents

The 17th May, 2020

Present:
Justice Muhammad Khurshid Alam Sarkar

This application under Section 233 of the Companies Act,

1994 (briefly, the Companies Act) has been filed by the petitioner,

as a minority shareholder, for obtaining a declaration from this

Court to the effect that the majority shareholders-cum-Directors of

Maxwell Stamp Ltd (hereinafter referred to either as MSL or as the

respondent No. 1-Company) are conducting the affairs of MSL in a

manner prejudicial to the interest of MSL by embezzlement of

MSL’s funds, with a second prayer for restraining (i) Maxwell

Stamp PLC, Abbot’s Court, 34 Farringdon Lane, London, ECIR

3AX, UK (hereinafter referred to either as MSP or as the

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respondent No. 2) from transferring the shares owned and held by it

in MSL, (ii) restraining Mr. Martyn James William Kebell, who, by

virtue of owning shares in MSP, is the Chairman of MSL,

(hereinafter referred to either as Mr. Kebell or as the respondent

No. 4) from transferring the shares held by MSP in MSL, (iii)

restraining Mr. Jeremy Christopher West (hereinafter referred to

either as Mr. West or as the respondent No. 5) from transferring the

shares owned and held by him in MSL and (iv) restraining Mr.

Rajnesh Mittal & Mr. Anthony John Wright (hereinafter referred to

either as the respondent Nos. 7 & 8 respectively or as the

Administrators) from transferring the shares owned by MSP in

MSL, now held by the Administrators on behalf of MSP, in any

manner to any juristic/natural person, till the misappropriated funds

are deposited either by the Directors, Managing Directors and

Chairman of MSP or by the Administrators of MSP into MSL’s

account; and with the third prayer for obtaining a declaration from

this Court to the effect that the majority shareholder-MSP or its

Administrators are not competent to appoint any Chairman and

Director in MSL until the defalcated money is refunded and, till

then, Chairman/Director for MSL should be appointed by this

Court.
 3

In the petition it is averred that MSL was incorporated under

the Companies Act as a private company limited by shares, in

Dhaka on 26.12.2002, with the main objective of, amongst others,

the consultancy business; that the petitioner is a director of MSL

wherein he owns and holds its 40% shares, MSP owns and holds

59.9% shares and Mr. West owns and holds 0.1% shares in MSL;

that MSP implemented foreign aided projects in Bangladesh

through MSL who provided the services of national consultancy in

the projects and MSP reimbursed the consultancy fees of national

consultants at the local rate and other overhead expenses of

implementing the projects; that MSL paid the national consultants

at their respective individual rate while it was to receive the fee for

each individual national consultant as per the rate fixed in the

project document; that MSL made profits from the difference

between the two rates; that MSP used to remit funds to MSL to

meet its operational expenses on a monthly basis to the nominated

bank account of MSL in Bangladesh; that on 23rd April 2013, MSL

Board took the decision that surplus fund belonging to MSL should

be kept in a ringfenced account titled “Maxwell Stamp Ltd

Bangladesh” in a British Bank by MSP; that on 41st Board Meeting

of MSL, the MSL’s Company Secretary informed the Board that as

per the books of accounts of MSL as on 30th November 2018, the

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intercompany receivables from MSP is BDT 150,420,057

(equivalent to GBP 1.42 million); that the independent auditor,

ACNABIN, in its report dated 21 December 2018 confirmed the

intercompany receivables from MSP by MSL was BDT

145,567,099; that the Financial Controller of MSP through two

letters dated 09.01.2019 confirmed the amount owed by MSP to

MSL was TK. 144,569,285 (equivalent to £1,310,822) and

Maxwell Stamp LLC, Suit 1102, Kamala Towers, Dana Piaza

Khalidiya, PO Box 111399, Abu Dhabi, UAE, which is a joint

venture company of MSP, (hereinafter referred to either as MSLLC

or as the respondent 3) owed to MSL an amount of TK. 997,814

(£9,047).

It is stated that MSL received a notice dated 30 January 2019

from the Administrators of MSP containing that the MSP has been

placed in administration (winding up). Pursuant thereto, the

Company Secretary of MSL informed the Administrators that MSP

owed BDT 1,52,242,979 (£1,458,509) to the MSL and the said fund

should not be the part of the administration and requested to return

the same forthwith and MSL has never permitted MSP to use its

fund by MSP for any activity or necessity of MSP. Then, on 30th

January 2019, the Administrators of MSP vide their e-Mail to MSL

informed that they had identified an account held in the name of

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“Maxwell Stamp Ltd Bangladesh” at Lloyds Bank which has a

balance of £127.33 as on that date and also informed that the bank

had confirmed that this had been the balance since January 2017

when £115k was transferred from the account. Thereafter, in “the

Administrators’ Proposals 20 March 2019”, it is disclosed that the

MSP does not have sufficient property to enable a distribution to be

made to unsecured creditors and made a suggestion that they would

review bank statements and documentation to consider if there has

been a breach of trust. On this basis, the Company Secretary of

MSL requested the Administrators to keep MSL informed of the

investigation to be made by the Administrators, but the

Administrators did not carry out any investigation into the

allegations of misuse of MSL’s fund. It is alleged that MSP,

MSLLC, Chairman and present/former Director of MSP with mala

fide intention and in order to defraud the petitioner misused the

ringfenced funds of MSL causing severe financial loss/damage to

MSL/petitioner and, also, the MSLLC in collusion with MSP did

not pay the dues of MSL of Tk. 997,814 (equivalent to £9,047) as

on 30th September 2018. Recently, the respondents Nos. 4 & 5

have resigned from the posts of Chairman and Director of MSL.

Since the majority shareholders of MSL (respondent Nos. 2 to 6)

have unauthorizedly used the ringfenced funds of MSL and thereby

 6

conducted the affairs of the respondent No. 1-company (MSL) in a

manner prejudicial to the interest of the minority shareholder, the

petitioner has been compelled to file this petition before this Court

under Section 233 of the Companies Act.

No Vokalatnama/Power or any affidavit has been filed on

behalf of any of the foreign respondents.

Dr. Md. Mahboob Murshed, the learned Advocate for the

petitioner, takes this Court through (i) the minutes of the 30th to 41st

meetings of the Board of Directors (BoD) of the MSL held from

April 2013 upto December 2018, (ii) two letters both dated

09.01.2019 sent by the Financial Controller of MSP to the

independent auditor ACNABIN and (iii) the report prepared by the

ACNABIN, and submits that MSL is entitled to get an amount of

BDT 152,242,979 (£1,458,509) from the respondent nos. 2,3,4,5 &

6 and, accordingly, respondent nos. 4, 5 and 6 are personally liable

along with respondent no. 2 to pay the amount to MSL. He places

the provisions of Section 233 of the Companies Act and forcefully

submits that since the majority shareholder, namely, MSP

(respondent No. 2) has embezzled the funds of the respondent No.

1-company (MSL) through employing, and in collaboration with,

respondent Nos. 4, 5 & 6 as its representatives, MSP does not have

any right to replace any one in the places of the respondent Nos. 4
 7

& 5 in the management of the MSL for holding the posts of

Chairman and Director and, further, their shares must not be

transferred till they refund the money they owed to MSL. He then

prays to this Court to pass an Order declaring that the

Administrators are legally bound to hold the assets of MSP in order

to ensure the payment of the dues of BDT 152,242,979

(£1,458,509) and BDT 997,814 (£9,047) owed by MSP and

MSLLC respectively to MSL.

None of the respondents, either in person or through

engaging any lawyer, appeared before this Court to make any oral

submission.

It should be recorded here that after preliminary hearing,

when this matter was admitted on 26.08.2019, it was felt by this

Court that for an effective and fair disposal of this matter, presence

of the respondents is required before this Court to find out the

veracity of the petitioner’s claim as to the misuse of the ringfenced

funds of MSL by the Chairman and Directors of the MSP (who also

holds the same post in MSL) causing severe financial loss/damage

to MSL as well as the petitioner and further nonpayment of the

dues of MSL of Tk. 997,814 (equivalent to £9,047) as on 30th

September 2018 by the MSLLC. Accordingly, this Court passed an

Order directing the Office of this Court to serve notices upon all the
 8

foreign respondents through DHL courier services, e-Mails as well

as through registered posts, in addition to publication of notices in

the two daily national news papers. It is evident from the materials

submitted by the petitioner and the concerned administrative unit of

this Court that this Court’s aforesaid Order has been complied with

in toto. Even after service of notices through the above four

methods, when this Court found that the respondents are not

appearing before this Court, this Court, for ends of justice, adopted

another device to notify the respondents about the filing of this case

by communicating and contacting the respondent No. 3 through

diplomatic channel i.e. through Embassy of the People’s Republic

of Bangladesh, Abu Dhabi, UAE, in an expectation that since MSP

is no more in existence, its joint venture (respondent No. 3) might

be in operation. After exhausting all the aforesaid

procedures/methods/paths as to serving notices upon the foreign

respondents, the matter was posted in the Daily Cause List of this

Court under the heading “For Hearing”. Thereafter, from the last

few months the matter was appearing in the Daily Cause List with

the name, of the foreign respondents and everyday when the matter

was being called up, none appeared before this Court to represent

the respondents. Lastly, on 23.03.2020, when the matter was taken

up for hearing, no one is found present in the Court-room on behalf

 9

of the respondents. In the premises, Dr. Md. Mahboob Murshed, the

learned Advocate appearing for the petitioner, candidly submitted

that since the respondents were not coming forward to take any step

in this matter, in spite of the fact that the item was appearing in the

list for consecutive 7 (seven) months, there is no point in waiting

for them and, hence, he prayed for allowing this application under

Section 233 of the Companies Act on merit; not only on the ground

of non-appearance of the respondents.

In view of the fact that though the matter has been appearing

in the Daily Cause List under the column “For Order” from

14.10.2019 for last consecutive 7 (seven) months with the names of

the foreign respondents and no one on behalf of these respondents

bothered to appear before this Court despite serving notices upon

them through every possible means, both manually and digitally,

this Court is led to take a view that the respondents do not have any

interest to pursue or contest this matter. Therefore, I am satisfied

that this case deserves to be proceeded and disposed of ex-parte.

After hearing the learned Advocate for the petitioner,

perusing the instant application together with its annexures and

reading the statutory laws and case-laws, it appears to me that the

following issues are required to be adjudicated upon by this Court;

(1) whether the allegations made by the petitioner against the

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majority shareholders-Directors (respondent Nos. 2 to 6) are

substantiated by the materials on record; (2) if the petitioner’s

allegations as to the misappropriation of the respondent No. 1-

company’s funds against the majority shareholders-Directors are

found to be true, whether the facts of the case attract the provisions

of Section 233 of the Companies Act, 2(a) whether the majority

shareholder-MSP or, on its behalf, the Administrators is/are

competent to make fresh appointments in the posts of Chairman

and Director of MSL pursuant to resignations of the respondent

Nos. 4 & 5 and 2(b) whether the Administrators should be

restrained from selling out the shares owned by MSP and the

respondent No. 5 in MSL till they refund MSL’s fund.

Let me take up the first issue, namely, whether the

allegations made by the petitioner against the majority shareholders

(respondent Nos. 2 to 6) are substantiated by the materials on

record. Annexure-C series are the minutes of different BoD

meeting of MSL. For an effective and fair adjudication of the

aforesaid issue No. 1, the decision No. 30.4 taken by the BoD of
 11

MSL in its 30th meeting held on 23rd April, 2013 appears to this

Court to be very pertinent, which is produced verbatim below:

30.4. Opening of a foreign currency bank account

for MSL in London:
Further to the above, it was decided that the MD-MSP
shall take this up with Standard Chartered Bank in
London and MSP Financial Controller shall get back
to the Company Secretary of MSL with a list of
documents needed to open the FCY account for MSL
in London. This will allow a corporate credit card for
MD-MSL.

From the minutes of the above-mentioned decision of the

BoD of MSL, it is apparent that there is a clear board resolution as

to opening of a Foreign Currency (FCY) account in London for

MSL and the company’s (MSL’s) majority shareholders (who are

also the majority shareholders of MSP) were shouldered with the

duties of doing the needful for opening up the said FCY account. It

is evident from the aforesaid minutes of BoD that the resolutions

were taken unanimously under the chairmanship of Mr. Adrian

Neville Osborne (respondent No. 6).

From the minutes of all the subsequent BoD meetings, i.e.

31st, 32nd, 33rd, 34th, 35th, 36th, 37th, 38th, 39th, 40th and 41st meetings

of the BoD held on 23rd September 2013, 14th July 2014, 12th March

2015, 7th July 2015, 25th November 2015, 10th May 2016, 16th

August 2016, 26th July 2017, 17th April 2018, 26th September 2018

and 20th December 2018 respectively, it appears to this Court that

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there was always an agenda in all these BoD meetings and every

time the said item was left ‘to be followed up in the next meeting’.

Although all the above-mentioned 11 (eleven) BoD meetings are

required to be reproduced here for the purpose of clarity of the

business transactions of MSL, however, for the sake of brevity, the

minutes of only the 31st, 35th and 41st BoD meetings, out of the

above-mentioned 11 (eleven) BoD meetings, are extracted below:

31st BoD meeting:

31.1.b. Follow-up on the proceedings of the 30th
board meeting:
All the matters arising from the resolution of the 30th
board meeting were followed up on except the
following:
Following the decision under clause 30.4 of 30th board
meeting the FCY bank account for MSL in London is
yet to open.
35th BoD meeting:
35.1.b. Follow-up on the proceedings of the 34th
board meeting:
All the matters arising from the resolution of the 34th
board meeting were followed up on except the
following:
As per the decision under clauses 32.6,33.1.b (1st para)
and of the 32nd, 33rd and 34th board meeting
respectively, a GBP bank account for MSL has been
set up in London, UK. However, the online view of
Corporate Banking for MSL is yet to be separated
from the Group bank accounts so that MSL may have
access to this account from Bangladesh.
41st BoD meeting:
41.1.b. Follow-up on the proceedings of the 40th
board meeting:
All the matters arising from the resolution of the 40th
board meeting were followed up on except the
following:
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Following the discussions under clauses 32.6, 33.1.b

(2nd para), 34.1.b (1st para), 35.1.b (1st para), 36.1.b (1st
para), 36.3, 37.1.b (1st para), 38.1.b (1st para), 39.1.b
(1st para), and 40.1.b (1st para) of the 32nd, 33rd, 34th,
35th, 36th, 37th, 38th, 39th, and 40th board meetings
respectively, it was notified by the Director, MSP to
the Board of MSL that the Lloyds Bank has taken
control of all bank accounts of MSP, UK including the
bank account opened and maintained in the name and
style “MAXWELL STSMP LTD BANGLADESH”
and while the Board of Directors of MSP, UK is
discussing other options with the bank and the
financial advisors, it may go into administration in
near future. The Director, MSP will update more to the
Board of MSL once he is back to office from holidays
on 2nd January 2019.

While the 31st to 39th meetings of the BoD of MSL were

presided over by the respondent No. 6 (Mr. Adrian Neville

Osborne), the next two BoD meetings were held under the

chairmanship of the respondent No. 5 (Mr. Jeremy Christopher

West) and all the resolutions were taken in the above-mentioned 11

(eleven) BoD meetings unanimously. From the minutes of all these

BoD meetings, it appears that while in few meetings (31st onward

BoD meetings) an impression was given by the foreign shareholder

of MSL (i.e. the representative of MSP) that the FCY account is

about to be opened, however, in the subsequent BoD meetings, it

was informed that a bank account in the name of MSL had been set

up in London. Even in the last meeting (41st BoD meeting held on

20th December, 2018, which was presided over by Mr. Jeremy

Christopher West), it was being discussed that ‘………... the bank

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account opened and maintained in the name and style of Maxwell

Stamp Ltd Bangladesh………..’.

It further appears that in the 41st meeting of the BoD, which

is the last BoD meeting presided over by a representative of MSP –

Mr. Jermey Christopher West, the following two resolutions,

among other resolutions, were taken, which being relevant for

adjudication of this case, are extracted below:

41.2. To authenticate the annual accounts of the

company for the period from 1st October 2017 to
30th September 2018:
The annual accounts of MSL for the year ended 30th
September 2018 was authenticated by the Board.
The pre-draft audit reports issued by the auditors on
19th December 2018 along with audited financial
statements were reviewed by the Board. It was brought
to the attention of the Board that the auditors shall
issue the final audit report after obtaining the inter-
company balance confirmation letter from MSP,
among others. However, MSL is yet to receive the
inter-company accounts details from MSP for onward
submission to the auditors.
41.3. To decide the collection process of inter-
company receivables from MSP:
The Company Secretary informed to the Board that as
per the books of accounts of MSL as on 30th
November 2018, the inter-company receivables from
MSP is BDT 150,420,057 (equivalent to GBP 1.42
million approximately).
The above funds belonging to MSL were held by MSP
to MSL’s order in a completely separate and
ringfenced named account “MAXWELL STAMP
LTD BANGLADESH” for use by MSL. In the
circumstances that MSP may go into administration,
these funds should not form part of the administration
and should be returned to MSL forthwith. In this
regard, it was decided that the Director, MSP shall
follow up with the bank and the financial advisors and
 15

get back to the MD MSL once he is back to office

from holidays on 2nd January 2019.

It appears from the above-quoted two resolutions of the 41st

BoD meeting of MSL presided over by the representative of MSP

(Mr. Jeremy Christopher West) that a fund of BDT 150,420,057

(GBP 1.42 million) belonging to MSL is being held by MSP in a

ringfenced account “Maxwell Stamp Ltd Bangladesh” for use by

MSL.

It further appears that when through annexure–E, which is

the General Notice dated 30th January, 2019 circulated by the

Administrators (respondent Nos. 7 & 8), it was notified to all the

stakeholders of MSP (i.e. all creditors, members and employees)

that MSP had been placed on administration since 24 January 2019,

the Company Secretary of MSL informed the Administrators upon

furnishing the inter-company accounts about holding BDT

152,124,979 (GBP 1,458,509) by MSP to MSL’s order in a

separate and ringfenced bank account titled “Maxwell Stamp Ltd

Bangladesh”, advising the Administrators that the said fund should

not form part of the administration with a request to return the same

forthwith.

Then, it appears from annexure-G series that the

Administrators found out a bank account in London at Lloyds Bank

in the name of “Maxwell Stamp Ltd Bangladesh” with a balance of

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only GBP 127.33 as of January 2017 and without any change in

amount since then to date and, pursuant thereto, the petitioner, upon

providing requisite papers in substantiating his claim, requested the

Administrators to conduct necessary investigations to trace out the

funds and, eventually, when the Administrators informed the

petitioner that the management of MSP, (i.e. Directors, Managing

Director and the Chairman of MSP, who is also the Chairman of

MSL) have confirmed that they have never held the aforesaid

amount of fund in London for MSL, then, the petitioner sought

explanations from the Chairman of MSP (who is also the Chairman

of MSL-the respondent No. 4) vide annexure-1, which is an e-Mail

communication to Martyn Kebbell (mkebbell@maxwellstamp.com)

and Jeremy West (jeremy_west69@hotmail.com) on 07 may 2019

at 13:14, under a captioned subject ‘You and Jeremy’s current

status in MSL Board’. In order for having a better understanding

about the contents of the aforesaid e-Mail, the relevant parts of the

same are reproduced below:

Dear Martyn,
…………………………………………………………
………………………………………………… .
As you had the overall responsibility as the Chairman
of MSP UK, so you are the right person to respond to
the following questions I set out below. These
questions will need to be addressed at any Board
meeting, so we might as well deal with them now.
 17

…………………………………………………………
………………………………………………… .
What is more pressing and important to MSL
Bangladesh, are your responses to the questions below:
Questions
1. Whereabouts of the £1.45 million owing to MSL by
MSP?
2. Why funds belonging to MSL were used to run and
fund the UK operations, without agreement of the
Board of MSL?
3. Why the money belonging to MSL was not placed
in the “ring-fenced” account as agreed?
4. Why was there a failure by you in connection with
keeping MSL informed about its funds?
I look forward to hearing from you.
…………………
………………….

Since the afore-quoted e-Mail is a self-explanatory one, it is

easily understandable that the majority shareholders of MSL (i.e.

respondent Nos. 2, 4, 5 & 6) are being blamed by the petitioner to

have been in breach of trust in dealing with the affairs of the

respondent No. 1-company (MSL). In response thereto, Mr.

Kebbell (the Chairman of MSP as well as of MSL) has

endeavoured to provide some sort of explanations to the queries

raised by the petitioner by annexure-L, which is the e-Mail sent by

Mr. Kebbell to the petitioner on June 13, 2019 at 7:22pm. The

relevant portion of the aforesaid e-Mail is extracted below:

Dear Nuruddin
The responsibilities of a Company-Chairman does not
extend to becoming involved in the day-to-day
management of companies. Accordingly, I did not get
involved in the day-to-day matters of PLC. As
 18

Chairman, I was primarily concerned with strategy. As

CEO of Abu Dhabi, I was more concerned with the
day to day management of that office. The equivalent
person who managed PLC on a day-to-day basis was
the managing director with whom I know you had a
close and ongoing professional relationship. He might
be better placed to answer your questions.
I am sorry that I cannot be of any further help on this.
…………………………………. .
…………………………………. .

It is evident that MSP, as a juristic person, was owing and

holding 59.9% shares in MSL and Mr. Kebbell, as the Chairman of

MSP, was holding the post of Chairman in MSL; and Mr. Adrian

Neville Osborne was initially holding 0.1% shares in MSL, which,

later on, was being held by Mr. Jeremy Christopher West and they

were accordingly occupying the post of Director in MSL

successively. So, apparently, among the current majority

shareholders of MSL, MSP is the juristic person, Mr. Jeremy

(respondent No. 6) is the natural person and Mr. Kebbell

(respondent No. 4) being the owner/holder of shares in MSP was

holding the post of Chairman in MSL. Given that Mr. Adrian

Neville Osborne (respondent No. 6) has sold out his shares of MSL

on 26.09.2018 after taking place of the occurrence as to missing of

MSL’s funds, thus, he is not indemnified from the liability of

reimbursement of MSL’s missing funds, on the ground of his

present nonattachment with the affairs of MSL. Accordingly, it was the

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legal obligation of Mr. Kebbell, Mr. Jeremy and Mr. Osborne to

appear before this Court either to concede to the petitioner’s claim

or to controvert the same. But, after receiving the summons from

this Court, while Mr. Jeremy by his e-Mail communication made to

this Court (rg@supremecourt.gov.bd) on November 06, 2019

simply informed that he has resigned from MSL on 13th June 2019,

Mr. Kebbell and Mr. Osborne abstained from making any

communication with the Court. When any person receives

summons from a Court together with the contents of the suit/case, it

is incumbent upon the said person either to accept the claim or to

oppose it by appearing before the Court in-person/through lawyer

or by submitting affidavits. But in this case, neither did the

Chairman, Managing Director or Director of MSP (respondent Nos.

2, 4 & 5 respectively) communicate this Court nor did the

Chairman and Director of MSL (respondent Nos. 4 & 5

respectively) come forward to fulfill their respective legal

obligations.

Given the above-mentioned scenario of this case, while it is

apparently a difficult job for this Court to arrive at a concrete

conclusion as to which person/s (Chairman or Managing Director

or any other Director of MSP) is/are responsible for amalgamation

of MSL’s money with the money of MSP, however, the contents of

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the two letters, both, dated 09 January 2019 sent by the Financial

Controller of the juristic majority shareholder (MSP) to the

ACNABIN, an internationally reputed Chartered Accountant Firm,

(annexures-J & J1) appear to this Court to be of some use and

assistance for resolutions of the petitioner’s complaint. The relevant

portions of anxexures-J & J1 are reproduced below:

“I confirm that as at 30 September 2018, the amount

owed by Maxwell Stamp PLC to Maxwell Stamp
Limited Bangladesh was Tk. 144,569,285 (equivalent
to £1,310,822). The £ equivalent is calculate using the
OANDA exchange rate of BDT 110.289 to £1 as at 30
September 2018.
…………………………………………………………
………………………………………………… .”
“I confirm that as at 30 September 2018, the amount
owed by Maxwell Stamp LLC to Maxwell Stamp
Limited Bangladesh was Tk. 997,814 (equivalent to
£9,047). The £ equivalent is calculate using the
OANDA exchange rate of BDT 110.289 to £1 as at 30
September 2018.
…………………………………………………………
………………………………………………… .”

It is evident from these two letters that the amount owed by

MSP to MSL is BDT 144,569,285 (GBP 1,310,822) and MSLLC

(respondent No. 3-whose majority shares are held by MSP) remains

indebted to MSL of an amount of BDT 997814 and since the above

two letters have been sent on behalf of the juristic person-MSP (i.e.

the majority shareholder of MSL) by its Financial Controller and,

after receiving the summons by MSP and its Administrators who

 21

are now at the helm of the affairs of MSP, they are not contesting

this case, this Court is led to take a presumption that the contents of

the afore-quoted two letters are true.

Also, the audit report prepared by the independent auditor

ACNABIN in its ‘Statement of Financial Position’ states that there

is an inter-company receivables of an amount of BDT 145,567.099

under the heading ‘Current Assets’ as of 30 September 2018. The

Note to the above financial statements are extracted below:

Note: 6.00 Inter-Company Receivables

Maxwell Stamp PLC, London 144,569,285 152,510,987
(Parent company) 997,814 975,184
Maxwell Stamp KSA 145,567,099 153,486,171
This represents inter-company receivables after off-setting the inter-
company liabilities arose for meeting the operational expenditure of the
company.

So, in absence of any materials against the above-mentioned

financial statements, there is hardly any choice left for this Court

other than to hold that MSL is entitled to get the above-mentioned

amount of money from MSP. To be more sure, this Court, in course

of hearing of the instant case, appointed another C/A Firm to

conduct audit of the respondent No. 1-company (MSL) and, after

carrying out the audit for the Financial Years 2013 to 2019, the

Court-appointed auditor reported that MSP had the custody of

MSL’s money of BDT 144,569,285 and, in addition thereto,

MSLLC has to pay BDT 997,814 to MSL; and, since MSLLC is

 22

also owned by MSP, the total amount of BDT 145,567,099 is owed

to MSL by MSP, as of 30 September 2018. And, as on 31 October

2019, the said amount stood BDT 153,041,952, as per the Court-

appointed auditor’s report.

In my view, which is the settled principle of all the common-

law jurisdictions, when a Court, having put its best efforts by using

all the possible manual and digital means of serving notices upon

the defendants/respondents/opposite parties, proceeds with the

hearing of a suit/case ex-parte, it may take the

statements/averments made by the petitioner to be true, subject to

arriving at the findings by the Court, by tallying the pleadings with

the annexed/exhibited papers upon carrying out a scrupulous and

judicious scrutiny thereto, that the pleadings are compatible and

plausible.

Against the backdrop of the foreign respondents’

unwillingness to contest this case, coupled with this Court’s

painstaking findings on the papers/documents submitted by the

petitioner before this Court by way of swearing an oath before the

Commissioner of Oath of this Court, this Court is led to arrive at a

conclusion that MSP was holding BDT 145,567,099 as of 30

September 2018 for and on behalf of MSL, which, by 31 October,

2019, has become BDT 153,041,952.

 23

With the above conclusion on the issue No. 1, I may now

embark upon examination of the issue No. 2, namely, whether the

petitioner’s case falls under the purview of Section 233 of the

Companies Act together with the issue No. 2(a), namely whether

the majority shareholder-MSP is competent to make fresh

appointments to the posts of Chairman and Director of MSL

pursuant to resignations of the respondent Nos. 4 & 5. In order to

effectively adjudicate upon this issue, it would be profitable, if this

Court is acquainted with the provisions of Section 233 of the

Companies Act, which are as follows:

Protection of Minority Interest

233. Power of Court to give direction for protecting
interest of the minority:- (1) Subject to the
fulfillment of the conditions of the required minimum
as specified in Section 195 (a) and (b), any member or
debenture holder of a company may either individually
or jointly bring to the notice of the Court by
application that-
(a) the affairs of the company are being conducted or
the powers of the directors are being exercised in a
manner prejudicial to one or more of its members or
debenture holders or in disregard of his or their
interest; or
(b) the company is acting or is likely to act in a manner
which discriminates or is likely to discriminate the
interest of any member or debenture holder;
(c) a resolution of the members, debenture holders or
any class of them has been passed or is likely to be
passed which discriminates or is likely to discriminate
the interest of one or more of the members or likely to
debenture holder;
and pray for such order, as in his or their opinion,
would be necessary for safeguarding his or their
 24

interest and also the interest of any other member or

debenture holder.
(2) The Court shall, on receipt of an application under
sub-section (1) send a copy thereof to the Board and
fix a date for hearing the application.
(3) If after hearing the parties present on the date so
fixed, the Court is of opinion that the interest of the
applicant or applicants has been or is being or is likely
to be prejudicially affected for reasons specified in the
application, may make such order as prayed for or
such other order as it deems fit including a direction-
(a) to cancel or modify any resolution or transaction;
or
(b) to regulate the conduct of the company’s affairs in
future in such manner as is specified therein.
(c) to amend any provision of the memorandum and
articles of the company.

From a plain reading of the above provisions, it appears that

for filing a Section-233 application there is a condition that a

petitioner individually or jointly have to be the owner of 10% of the

issued-shares and, side-by-side, the petitioner has to satisfy the

Court that his grievance/s come within the ambit of any of the

paragraphs (a) or (b) or (c) of sub-Section (1) of Section 233 of the

Companies Act. Thereafter, the Court would be in a position to pass

any appropriate Order for the purpose of just and smooth

functioning of the company, so that by maintaining and upholding

the interests of the minority group, in essence, the greater interest of

the company is protected. The above law is supported by a score of

case-laws of our jurisdiction, the latest of which is AKM Lutful

Kabir Vs Neeshorgo Hotel 2019(3) 17 ALR 101.

 25

In this case, the petitioner owns and holds 40% of the issued

shares, which being more than the minimum threshold, the

petitioner is well-competent to be a petitioner of a Section-233

application. Also, the allegations labelled against the Chairman and

the Directors of MSL (Mr. Kebell, Mr. West and Mr. Osborne –

respondent Nos. 4, 5 & 6 respectively) appeared to this Court to

have squarely fallen under the purview of Para (a) to sub-Section

(1) of Section 233 of the Companies Act and, accordingly, it is held

that the instant application is a fit one under Section 233 of the

Companies Act.

In view of the findings of this Court that the majority

shareholder-MSP (respondent No. 2 ), respondent No. 4, who as the

shareholder and Chairman of MSP was holding the post of

Chairman of MSL and respondent Nos. 5 & 6, have defalcated the

funds of the respondent No. 1-company (MSL) in collaboration

with each other; in other words, since the juristic shareholder

(MSP) and its directors, Managing Director and Chairman have

embezzled the funds of the respondent No. 1-company (MSL), this

Court is of the view that the interests of the respondent No. 1-

company as well as that of the minority shareholder shall be best

protected if no representative from the majority shareholders are

allowed to be on the Board until they refund the defalcated money

 26

into the account of MSL. Until the money is refunded into the

account of MSL, the Chairman and Director/s may be appointed by

the Order of this Court as per the need of the respondent No. 1-

company (MSL). It transpires from the Order-sheets of this case

that after resignations of the Chairman (Mr. Kebbell) and the

Director (Mr. West) on 13.06.2019, when the petitioner became the

lone Director of MSL, this Court, on the petitioner’s prayer during

pendency of this case, vide an interim Order dated 29.10.2019,

temporarily appointed (1) Syeda Nusrat Ahmed, daughter of Mr.

Syed Nuruddin Mahmud and Mrs. Sufia Mahmud of House No. 78,

Road No. 12, Block-E, Banani, PS: Gulshan, Dhaka-1213 and (2)

Mr. Afsan Hasan Khan, son of Mr. Ashrafuzzaman and Mrs. Selina

Begum of House No. 43, B-6, Road No. 1, Block-A, Niketon

Gulshan, Dhaka-1212 as the Directors of the respondent No. 1-

company (MSL), so that MSL can carry on its day-to-day activities,

subject to fulfillment of the legal requirements (i) as to taking

written consent from the proposed Directors and (ii) purchasing

qualifying shares within sixty days from the date of appointment,

under Sections 93 and 97 of the Companies Act respectively.

Now, comes examination of the issue No. 2(b), namely,

whether the Administrators should be restrained from selling out

the shares owned by MSP and the respondent No. 5 in MSL till the
 27

MSL’s funds are refunded by MSP or by its other stakeholders,

(including the Directors, Managing Directors and Chairman of

MSP and Mr. West) or by the Administrators. From the e-Mail

communications between the Administrators and MSL, it appears

to this Court that after sending the relevant papers and documents

by MSL from Dhaka in compliance with the Administrators’

request, the Administrators were of the view that MSP was

supposed to maintain a separate account in London towards

execution of the decision taken by the BoD of MSL in its 30th

meeting. Also, the Administrators hinted at the existence of a

balance of 1.2 million at some point in time in the year 2017, but

due to not holding the said money independently for and on behalf

of MSL by the management i.e. Board of Directors of MSP, the

same has been spent by the MSP. The Administrators, then, opined

that since the Directors of MSP have not implemented the said

decision, under the circumstance, they would not be able to

compensate the petitioner and MSL. Then, by another e-Mail, the

Administrators informed the petitioner that they are going to sell

out the 60% shares owned by MSP in MSL, which has been

resisted by the petitioner by an Order of Injunction passed by this

Court on 14 October, 2019.

 28

From the administrative file of this case, it appears that the

Administrators have received this Court’s notices sent through (i)

diplomatic channel, (ii) by registered post, (iii) by DHL courier and

(iv) via e-Mail. It is worthwhile to record here that the

Administrators were communicating with the petitioner before

filing this case through the following two e-Mail accounts; (i)

rajmittal<rajmittal@frpadvisory.com and (ii)

anthonysimmons<anthonysimmons@frpadvisory.com, but when

this Court’s Register General vide his e-Mail

(rg@supremecourt.gov.bd) asked them to enter their appearance in

this case, first-time, on Thursday, August 29, 2019 at 02:56pm and,

thereafter, second-time, on Tuesday, November 05, 2019 at

04:23pm, they did not bother to respond to the same. Had the

Administrators been in contact with this Court, there would have

been an occasion for this Court to direct them to, at least, have an

explanation from the MSP’s Financial Controller about the

whereabouts of MSL’s money; the specific question would have

been for the Financial Controller of MSP - as to how or, on what

basis, he had confirmed the independent auditor ACNABIN on

09.01.2019, just before few days of placing MSP on administration,

that an amount of BDT 152,124,9779 (GBP 1,458,509) is owed to

MSL by MSP. Therefore, the stance of the Administrators in

 29

transacting/dealing with the interests of MSL does not appear to be

transparent to this Court.

In the backdrop of the findings arrived at by this Court

hereinbefore that at the time of placing MSP on administration,

MSP owed BDT 145,567,099 to MSL, coupled with the findings on

the conducts of the Administrators, this Court is of the opinion that

until the Administrators refund the aforesaid money into the

account of MSL or they amicably sort out the dispute with the

respondent No. 1-company (MSL), the 60% shares owned by MSP

and Mr. West shall not be bequeathed, gifted, sold or transferred in

any other manner.

Based on the observations made and the findings arrived at

by this Court hereinbefore, the following Declarations, Directions

and Orders are now going to be passed by this Court:

(1) It is declared that MSP (respondent No. 2), as the majority

shareholders of MSL and the representatives of MSP,

namely, Mr. Martyn James William Kebbell (the Chairman

of both MSP and MSL-respondent No. 4), Mr. Jeremy

Christopher West (Director of MSL-respondent No. 5) and

Mr. Adrian Neville Osborne (former Director of MSL-

respondent No. 6) have conducted the affairs of the

 30

respondent No. 1-company (MSL) in a manner prejudicial to

the interest of the petitioner as well as MSL.

(2) It is further declared that MSP, its shareholders/stakeholders

and the Administrators shall not be eligible to make

appointment to the post of Chairman and/or Director in the

Board of Directors of MSL, until they refund BDT

145,567,099 as of 30 September, 2018. If MSP or its

stakeholders (i.e. its Directors, Managing Director,

Chairman) or the Administrators refund MSL’s money, then,

MSP shall be competent to be on the BoD of MSL.

(3) MSP, its shareholders and other stakeholders (including its

Directors, Managing Director and Chairman), Mr. Jeremy

Christopher West (respondent No. 5) and the Administrator

of MSP are hereby restrained from transferring the 60%

shares owned by them (jointly with MSP or severally) in

MSL in any manner/form (i.e. by bequeathing, gifting,

pledging, selling) without, at first, obtaining nod from the

present BoD of MSL.

(4) (i) Syeda Nusrat Ahmed, daughter of Mr. Syed Nuruddin

Mahmud and Mrs. Sufia Mahmud of House No. 78, Road

No. 12, Block-E, Banani, PS: Gulshan, Dhaka-1213 and (ii)

Mr. Afsan Hasan Khan, son of Mr. Ashrafuzzaman and Mrs.

 31

Selina Begum of House No. 43, B-6, Road No. 1, Block-A,

Niketon, Gulshan, Dhaka-1212, who were temporarily

appointed as the Directors of MSL by this Court’s Order

dated 29.10.2019 shall be competent to continue to perform

their respective duties as per the provisions of MoA & AoA

of MSL, subject to the conditions that they have complied

with the provisions of Sections 93 and 97 of the Companies

Act from the date of their appointment as Directors of MSL.

(5) The current Board of Directors of MSL is directed to resolve

the issue as to refunding of MSL’s fund with the

Administrators with reference to this Judgment and Order

amicably through adjustment of the sale-price of the 60%

shares of MSL.

(6) If the Administrators consent to adjust the value of MSP’s

60% shares with the MSL’s money (i.e. the money owed by

MSP to MSL), in that scenario, if the amount of money of

the sale of the 60% MSP’s shares exceeds the amount due to

MSP by the MSL, then, the surplus must be returned to the

Administrators of MSP.

(7) If the Administrators’ job is ended up finally through

dissolution of MSP, without sorting out the MSL’s claim, in

 32

that event, the Board of Directors of MSL shall be competent

to deal with the shares as per the provisions of the

Companies Act.

In the result, the instant application under Section 233 of the

Companies Act is allowed with the above Declarations, Directions

and Orders.

The petitioner is directed to inform the RJSC about this

Judgment and Order by supplying the RJSC a copy of it, within 15

days from the date of drawing up of this Order.

The Register of the High Court Division is directed to take

necessary steps to communicate a copy of this Judgment and Order

to the respondent nos. 2-8 through the e-mail addresses given in the

cause title of this application as well as through DHL courier service and

diplomatic channel at the costs of the petitioner.

This Order will be effective subject to compliance with the

direction given hereinbelow. As part of MSL’s obligation towards

fulfillment of its Corporate Social Responsibility (CSR), MSL shall

donate Tk 10,00000/- (ten lacs) in two installments. (Tk. 5,00,000/-

(five lac) in each installment). Accordingly, the petitioner shall pay

Tk. 5,00,000/- (five lac) now from the funds of MSL and the next

installment shall be paid by MSL on or before 17th November,

2020. The payment should be made through Pay Order to Kendrio

 33

Eidgah Math Jame Masjid, Village-Paschim Chalua, P.O-Udakahli,

Upazila-Fulchhari, District-Gaibandha. Bank Account No.

0100149433478 Janata Bank, Kalirbazar Branch (Code No. 0959),

Fulchhari, Gaibandha (Contact number of Branch-01718-618879,

0542256109) e-Mail- jb0959@janatabank-bd.com.

On furnishing receipt of the above payment of Tk. 5,00,000/-

(five lac), the Order shall be drawn up and operational.